As appeals courts split on the constitutionality of mandatory detention for millions of immigrants, the U.S. Supreme Court is likely to decide the matter.

A Trump administration policy threatening imprisonment without bond has been struck down by three appeals courts, which could soon be joined by a fourth, but upheld by two others. The conflicting orders mean the Supreme Court must straighten out the situation as immigrants now could face different fates in different states.

The new detention policy, implemented in a July 2025 memo, threatens millions of immigrants with imprisonment without bond if they crossed a border illegally to get into the United States, no matter how long ago or whether they’ve applied for asylum. Without bond means they must be detained while awaiting court action.

The policy is a key part of the Trump administration’s stated goal to get 1 million removals a year, including deportations and voluntary returns.

So far the pace is about half that, or roughly 460,000 for the current fiscal year, if the daily rate as of mid-April continues, according to an analysis by Austin Kocher, a research assistant professor at Syracuse University.

This spring’s mixed appeals court rulings mean that in some states, detainees may be offered bond hearings and a chance to be released pending new court dates. In other states, people can now be held indefinitely.

Most recently, the 6th U.S. Circuit Court of Appeals, covering Kentucky, Michigan, Ohio and Tennessee,  struck down the policy Monday, saying it “strains reason” to suggest Congress intended to put millions of people into immigration detention. The 11th U.S. Circuit Court of Appeals, covering Alabama, Florida and Georgia, also struck it down last week, saying the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 does not give President Donald Trump “unfettered authority to detain, without the possibility of bond, every unadmitted alien present in the country.”

In April, the 2nd U.S. Circuit Court of Appeals, covering Connecticut, New York and Vermont, also struck down the policy, calling it “the broadest mass-detention-without-bond mandate in our Nation’s history for millions of noncitizens.”

Judges in another appeals court covering New England states, the 1st U.S. Circuit Court of Appeals, appeared skeptical of the policy in a hearing this month but have not yet ruled.

Meanwhile the 5th U.S. Circuit Court of Appeals, encompassing Louisiana, Mississippi and Texas, upheld the new policy, saying the status quo gives people living here illegally more rights than those at the border seeking legal admission.

“It seems strange to suggest that Congress would have preserved bond hearings exclusively for unlawful entrants,” the 5th Circuit ruling said. Those states have some of the largest detention centers in the country, often accepting transfers from other states. The cross-state transfers complicate legal cases attempting to free those detained there.

The 8th U.S. Circuit Court of Appeals, covering Arkansas and several Midwestern states, also upheld the Trump policy.

Conflicting appeals rulings like these, known as “circuit splits,” generally lead to a Supreme Court ruling to settle them, experts say.

The Department of Homeland Security did not respond to a Stateline request for comment. Last July, a department spokesperson told The Associated Press that “President (Donald) Trump and Secretary (Kristi) Noem are now enforcing this law as it was actually written to keep America safe.”

The Trump administration policy flies in the face of decades of federal practice that let many immigrants stay free on bond while they pursue their court cases, said Vanessa Dojaquez-Torres, practice and policy counsel at the American Immigration Lawyers Association, a trade group.

“This has done a lot of damage to people who are caught in detention with a very low amount of due process,” Dojaquez-Torres said.

The policy has also flooded federal courts with petitions for release by people denied bond under the policy, she added. Thousands were filed each week from January through late April, compared with a few dozen a week last year before the policy was enacted, according to a ProPublica report.

The threat of indefinite detention can be an incentive for immigrants who have been arrested to agree to the administration’s option of “voluntary departure.”

Hannia Ortega, who left Oklahoma for her native Mexico at age 22 last fall to avoid the threat of detention, said the policy has “helped me not to regret leaving.”

“I’ve had the opportunity to meet people here who were deported and were not given the chance to fight their cases in front of a judge. One of the people I met was an Uber driver who was deported after 36 years in the states,” Ortega wrote in an email to Stateline.

Ortega won an award for leadership and good grades in a Tulsa high school, and said she also earned a community college degree there with the help of a private scholarship for students living in the country illegally.

She decided staying in the U.S. was too risky. Her parents brought her illegally as a 6-year-old and she did not qualify for Deferred Action for Childhood Arrivals, known as DACA, a program with some deportation protections.

“It is scary and just speaks to how dangerous it has gotten for every single immigrant in the United States. I pray that better days are ahead for all but it seems unlikely any time soon,” Ortega wrote.

It’s hard to tell exactly how many immigrants are threatened with indefinite detention, but of about 14.6 million undocumented residents, the Center for Migration Studies estimates, something like 5.5 million could have entered the country illegally, making them subject to the detention policy.

There are no recent estimates for the percentage, said Robert Warren, senior visiting fellow at the Center for Migration Studies of New York. But in 2017 the center estimated 38% of unauthorized immigrants crossed the border illegally either by evading border patrol officers or surrendering to them and getting a court notice to fight deportation proceedings. Others overstayed legal visas and would not be subject to the new policy.

Mustafa Cetin, a New Jersey immigration attorney, said two of his clients from Turkey were denied bond despite a clean criminal record and active asylum cases in court. Both were arrested in October during routine check-ins with Immigration and Customs Enforcement, he said.

Both won release on bond through federal court decisions, and one has already won an asylum case, he said. Both followed a familiar pattern of seeking asylum in 2023 and 2024.

“They say, ‘Don’t come in,’ but if you come in, they will process you (with a court appearance ticket),” Cetin said. “We’ve seen this play out for hundreds of thousands of people. Then, this administration, instead of trying to deal with those who come to the border, they decided to scare people away.”

Stateline reporter Tim Henderson can be reached at thenderson@stateline.org.

By Naisha Roy/Medill News Service

WASHINGTON — Dozens of people gathered on a sandy lot in front of the White House construction zone Tuesday evening, carrying posters peppered with monarch butterflies and unfurling massive banners reading “Set kids free.”

The butterflies symbolized immigrants without legal status, as the protesters called to abolish all detention facilities in the United States as part of a “Close the Camps” vigil and protest organized by the Coalition to End Family and Child Detention and others, including the National Education Association.

“Migration is beautiful,” said Anat Shenker-Osorio, a communications manager who represented the NEA and her own firm at the event. “People move, and that should be celebrated.”

Many of the protesters were from Texas, rallying against the conditions in the Immigration and Customs Enforcement’s Dilley Immigration Processing Center south of San Antonio. 

Over the last few months, several advocacy group reports and lawsuits have alleged the facility lacks potable drinking water, healthcare, adequate food and clean clothing for detainees, many of whom are children.

“Families are reporting worms and mold in the food that’s making children ill,” said Trudy Taylor Smith, a policy administrator for the Children’s Defense Fund in Texas who was at the protest. “They are reporting a lack of access to clean drinking water. The tap smells foul. It’s making children sick, and yet if people want to avoid the tap and access clean water, they have to pay their own money to buy bottled water from the commissary.”

Democrats demand release of families

Dilley is the larger of two facilities in the country that hold immigrant families with children. Both had been shuttered for nearly four years, until the Trump administration reopened them in early 2025. 

Since then, children at the Dilley detention center reported feeling “sadness and depression,” in handwritten letters to ProPublica news reporters. They also wrote about losing their appetites and missing home. 

On the same day as the protest, a delegation of congressional Democrats led by Rep. Joaquin Castro, D-Texas, visited the Dilley facility and urged the Department of Homeland Security to release all families detained there. The delegation included Reps. Sylvia Garcia, D-Texas; Christian Menefee, D-Texas; Adelita Grijalva, D-Ariz.; Henry Cuellar, D-Texas; Mark Takano, D-Calif.; and Chellie Pingree, D-Maine.

“The kids, as you can imagine, were distraught. They were sobbing most of the time that we were with them,” Castro said after the inspection. “When it comes to the Dilley detention center, it’s one horror after another and one abuse after another.”

The Trump administration has denied the reports of mistreatment in Dilley, saying in a press release that all detainees have access to educational resources, infant care packages and regular medical screenings. “In most cases, this is the best healthcare illegal aliens have received in their entire lives,” the release reads.

Single mothers detained with children

Dianne Garcia, a pastor at San Antonio’s Roca de Refugio Church, led the protest with a moment of silence in honor of those detained and deported. so far. Garcia has seen 18 people in her community detained, including several single mothers sent to Dilley with their children.

“I knew a 3-year-old. He used to be the most gregarious kid,” she said. “Now he’s afraid all the time, always by his mother’s side.”

About 1 in 3 Texan children have an immigrant parent, per the Migration Policy Institute. 

The Austin school district lost over 3,000 students this year, partly because parents feared sending their kids to school amid immigration sweeps.  

“When children don’t feel safe to go to school, when enrollment drops, that means teachers are laid off, that means they lose funding,” Taylor Smith said.

Despite this, the Trump administration has announced plans to expand holding areas for children. 

Many demonstrators spoke out against a proposed detention center in Alexandria, Louisiana, set to be a “short-term facility,” where migrant families and unaccompanied children would be held for three to five days. 

Trump administration officials have said the facility will only temporarily house people who have agreed to “self-deport,” or leave the country voluntarily.

The detention facility’s construction was sited inside the Alexandria International Airport complex, across from the tarmac. U.S. officials deport hundreds of immigrants without legal status every day on ICE-contracted planes from this airport. 

Already, an investigation by The Guardian found the former military facility to be heavily contaminated with PFAS, toxic “forever chemicals” directly linked to cancer and other diseases. 

‘The same thing as being in a cage’

The protest organizers hoped to prevent more detention centers, and abolish the ones that already exist. Some attendees were former detainees, like Sulma Franco, who came to the United States in 2009 from Guatemala and was immediately sent to a facility by the Border Patrol. She called the detention center where she was held a hielera, or icebox, referencing the frigid temperature. 

“Being in a detention center is the same thing as being in a cage or being in jail,” she said, in an interview conducted in Spanish. “I believe the solution isn’t improvement; the solution is to close them permanently.”

Shenker-Osorio, the communications manager, said part of the protest’s goal was to maintain pressure on the White House and shift the rhetoric around how detention is discussed. 

Instead of “facilities,” for example, some of those at the event specifically chose to use the word “camps,” referencing the similarity in conditions to Nazi concentration camps. 

The coalition has a policy working group that communicates with Congress, with the ultimate aim of passing legislation banning family detention.

“This isn’t a difficult moral question,” Taylor Smith said. “Children don’t belong in cages.”

Medill News Service articles are reported and written by graduate student journalists in the Washington program of the Medill School at Northwestern University.

Some of the Trump administration’s controversial new warehouse immigration detention centers are getting scaled back and postponed as states and cities fight back and new Homeland Security Secretary Markwayne Mullin reviews actions taken by his ousted predecessor, Kristi Noem.

Some states and cities have seen more communication and compromise as Mullin takes over and the Department of Homeland Security faces a continued funding shutdown that has reached 60 days.

That includes discussions about a proposed Arizona detention center where DHS agreed to scale back the number of prisoners by two-thirds and pay a city for lost taxes, and a proposed center in Maryland with a similar offer from the department. A lawsuit also is holding up work on that detention center. And in Georgia, a small city cut off the water supply to a proposed immigrant holding site.

A plan to house up to 1,500 immigrants in Surprise, Arizona, starting as soon as May was scaled back to 542 detainees starting in October at the earliest, and DHS agreed to pay the city $300,000 a year for lost property taxes. The department also may offer more to help with any police costs, after negotiations with DHS under Mullin.

“With the new leadership there’s been a lot of communication,” Surprise Mayor Kevin Sartor told a local radio show April 15, a contrast to the “very frustrating” experience of how the city learned from news reports in January that DHS had purchased a 418,000-square-foot distribution center for $70 million.   

“We do have a different leadership style,” Mullin said in a CNBC interview April 16, comparing himself to Noem. “We want to make sure people understand that we’re here working for the people, not against you.” 

In Maryland, the new DHS administration has also offered a scale-back from 1,500 detainees to 542, in a Williamsport warehouse bought for $102 million in January. An April 15 court order keeps most work on the center paused as the state continues a lawsuit claiming “impacts on the environmental, economic, and public health and safety interests of the state.”

In Arizona, dozens of Democratic state lawmakers sent a letter in April asking the city of Surprise to “stop the facility from opening at all costs,” but Mayor Sartor has said he doesn’t see a legal basis for a lawsuit. The mayor’s office is nonpartisan, but Republicans predominate among registered voters in the city by almost 2-1 over Democrats. 

Communities across the country are facing the results of a massive detention expansion fueled in large part by the record $45 billion approved for increased immigration detention by Congress last summer.

U.S. Reps. Maxwell Frost & Darren Soto tell Kristi Noem not to open ICE facility in Central Florida

Other state and local action on the plan to repurpose warehouses for detention centers include a Kansas City, Missouri, ban on nonmunicipal detention facilities passed in January, Developers halted the sale of a south Kansas City warehouse in February.

Owners of an Indiana warehouse sent a letter saying they weren’t in active negotiations with for the site, which had been reported as a potential detention center and drew local opposition from the town of Merrillville. Democratic lawmakers in Florida opposed plans for a warehouse detention center near Orlando in February, while some Republican lawmakers supported it. 

In Georgia, the city of Social Circle cut off water and sewer service for a $128.6 million warehouse proposed to hold 10,000 detainees, saying the town of 5,000 people did not have the capacity to serve it.

“The city’s infrastructure cannot accommodate this level of demand,” according to a February statement from the city, despite a “certainly creative” solution suggested by DHS to fill a water-supply cistern at times of low demand.  

Stateline reporter Tim Henderson can be reached at thenderson@stateline.org.